4 Chapter Four: Adjudication Decisions

Deciding to Convict

After a criminal statute has been enacted, and after enforcement officials have brought charges against a specific individual under that statute, there is still one more key legal decision to be made: someone must decide whether the defendant is guilty of the charged offense. In one standard account of the criminal process, this adjudication decision is made by a jury after evidence is presented at trial. Adjudication by trial does sometimes occur in criminal law, but it is rare. Instead, most criminal convictions are the result of guilty pleas. And in some states, even the trials that do take place are typically bench trials, or trials in which a judge rather than a jury serves as the fact-finder. This chapter seeks to illuminate all of these various types of adjudication decisions, and to prompt reflection on the systemic consequences of the fact that adjudication is almost always a matter of pleas rather than trials.

The types of decisions examined in the previous two chapters—criminalization and enforcement decisions—have significant influence at the adjudication stage. As you know, criminalization decisions are made by a legislature in the first instance, expressed in the form of a statute that should define precisely the conduct designated as a crime. Criminal statutes structure adjudication decisions by identifying the key factors – the “elements” of the offense – that must be established in order to convict a defendant. Legislative decisions about how to define a crime, and enforcement decisions about which particular statute to charge, thus play an important role in shaping the adjudication decision. Indeed, a prosecutor’s power to select which statute(s) to use to charge the defendant is a key factor influencing guilty pleas, as discussed below. Moreover, enforcement decisions by police officers will often determine what evidence is available at the adjudication stage. When officers decide to question or search an individual based on “reasonable suspicion” or “probable cause,” the legal standards for enforcement decisions discussed in Chapter Three, police may then discover evidence that can meet the higher legal standards applicable to adjudication decisions. Recall Copenhaver from Chapter One, where a sheriff’s decision to stop a car for an expired registration led to the discovery of evidence of drug offenses.

In the next section of this chapter, we consider a phrase that is probably already familiar to you: “proof beyond a reasonable doubt.” In the rare instances in which criminal adjudication occurs at a trial, the fact-finder (whether judge or jury) is directed to find the defendant guilty only upon proof beyond a reasonable doubt. We will examine both the concept of proof in criminal law, comparing it to the suspicion thresholds discussed in the last chapter, and the concept of reasonable doubt. Examining proof requirements also gives us another opportunity to practice statutory analysis: you will need to be able to identify the separate elements of a statute that need to be proven to establish guilt.

Although it is important to understand the beyond a reasonable doubt standard, and to be able to analyze questions of proof in relation to specific statutory elements, it is also important to know that most criminal adjudication occurs by means of a guilty plea. When a defendant pleads guilty, he or she waives the right to a trial and relieves the prosecution of the burden to prove guilt. In this chapter, we will examine the basic legal requirements of a guilty plea, and we will consider some of the features of the criminal legal system that make guilty pleas so common.

A decision by a jury to convict, or a decision by a defendant to plead guilty, is a decision made and recorded at the trial court. That is where most adjudication decisions are made, and where most criminal cases end. But a minority of criminal cases do go to an appeals court, and appellate court opinions comprise a disproportionate share of the judicial opinions you will read to learn criminal law. After considering adjudication through trials or plea bargaining, this chapter turns to appellate adjudication, both to help you put the appellate opinions you read into context, and to illustrate the ways that appellate judges can review and revise criminalization, enforcement, and adjudication decisions made by other actors.

This chapter concludes Unit One, which has introduced you to three types of key decisions in criminal law: criminalization, enforcement, and adjudication decisions. But even as you learn about the decisions made by public officials, you should also be thinking about the arguments that lawyers make to try to influence those decisions. A concluding section of this chapter reviews the main types of arguments that lawyers have raised in the cases you’ve read so far in this book. Familiarity with these arguments will be useful as you begin to study specific categories of criminal offenses in Unit Two.

Legal “Proof” and Reasonable Doubt

A note about statutes: the next case, In re Winship, concerns a juvenile defendant who was charged with “the equivalent of larceny.” That means he was alleged to have committed acts that would constitute larceny were he an adult. The text of New York’s larceny statute is not important to the opinion below and not reprinted here, but larceny is discussed in detail in Chapter Five. In general, you should continue to look closely at the relevant statutes when they are included before or within a judicial opinion. The next section of this chapter will examine proof requirements in relation to the “elements” of criminal statutes, and the statutory text is always the place to start as you seek to identify the elements of a crime.

In the Matter of Samuel WINSHIP, Appellant

Supreme Court of the United States
397 U.S. 358 

Decided March 31, 1970

Mr. Justice BRENNAN delivered the opinion of the Court. 

Constitutional questions decided by this Court concerning the juvenile process have centered on the adjudicatory stage at “which a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution.” In re Gault, 387 U.S. 1 (1967). Gault decided that, although the Fourteenth Amendment does not require that the hearing at this stage conform with all the requirements of a criminal trial or even of the usual administrative proceeding, the Due Process Clause does require application during the adjudicatory hearing of “the essentials of due process and fair treatment.” This case presents the single, narrow question whether proof beyond a reasonable doubt is among [those essentials of due process] required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.  

 …[A judge in New York Family Court found that appellant, then a 12-year-old boy, had entered a locker and stolen $112… The petition which charged appellant with delinquency alleged that his act, “if done by an adult, would constitute the crime or crimes of Larceny.” The judge acknowledged that the proof might not establish guilt beyond a reasonable doubt, but rejected appellant’s contention that such proof was required by the Fourteenth Amendment. [Section 744(b) of the Family Court Act] provides that “(a)ny determination at the conclusion of (an adjudicatory) hearing that a (juvenile) did an act or acts must be based on a preponderance of the evidence.” … 

I 

The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The “demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” … 

Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. Mr. Justice Frankfurter [identified] “the duty of the Government to establish … guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’” Leland v. Oregon, 343 U.S. 790 (1952) (dissenting opinion). In a similar vein, the Court said in Brinegar v. United States (1949) that “(g)uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” … This Court [has] said … “No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them … is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” 

The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime … would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 

The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. … “There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of … persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of … convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.”   

Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. 

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 

II 

We turn to the question whether juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law. The same considerations that demand extreme caution in factfinding to protect the innocent adult apply as well to the innocent child. … [Gault] made clear … that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for “(a) proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.” 

… Finally, we reject the Court of Appeals’ suggestion that there is, in any event, only a “tenuous difference” between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that “the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.”  

III 

In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault—notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination. We therefore hold, in agreement with Chief Judge Fuld in dissent in the Court of Appeals, “that, where a 12-year-old child is charged with an act of stealing which renders him liable to confinement for as long as six years, then, as a matter of due process … the case against him must be proved beyond a reasonable doubt.”  

Reversed. 

Mr. Justice HARLAN, concurring. 

…I begin by stating two propositions, neither of which I believe can be fairly disputed. First, in a judicial proceeding in which there is a dispute about the facts of some earlier event, the factfinder cannot acquire unassailably accurate knowledge of what happened. Instead, all the fact-finder can acquire is a belief of what probably happened. The intensity of this belief—the degree to which a factfinder is convinced that a given act actually occurred—can, of course, vary. In this regard, a standard of proof represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions. 

A second proposition, which is really nothing more than a corollary of the first, is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In a lawsuit between two parties, a factual error can make a difference in one of two ways. First, it can result in a judgment in favor of the plaintiff when the true facts warrant a judgment for the defendant. The analogue in a criminal case would be the conviction of an innocent man. On the other hand, an erroneous factual determination can result in a judgment for the defendant when the true facts justify a judgment in plaintiff’s favor. The criminal analogue would be the acquittal of a guilty man. 

The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each. 

… In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. It is only because of the nearly complete and long-standing acceptance of the reasonable-doubt standard by the States in criminal trials that the Court has not before today had to hold explicitly that due process, as an expression of fundamental procedural fairness, requires a more stringent standard for criminal trials than for ordinary civil litigation. 

[Dissenting opinions of BURGER, STEWART, and BLACK omitted.] 

Notes and questions on Winship

1. Winship has been called “the civil case at the heart of criminal procedure,” and that phrase captures an oddity of the decision: it was technically a civil case, since New York (like other states) had created a separate juvenile court to address wrongdoing by minors and had classified these juvenile proceedings as civil rather than criminal. See W. David Ball, The Civil Case at the Heart of Criminal Procedure: Winship, Stigma, and the Civil-Criminal Distinction, 38 Am. J. Crim. L. 117 (2011). Since the creation of juvenile courts, the extent to which juvenile defendants in these ostensibly civil proceedings are entitled to the same constitutional protections as adult criminal defendants has been a recurring question. In the decision you’ve just read, the Supreme Court determined that the consequences of being labeled “delinquent” as a juvenile were sufficiently similar to the consequences of being labeled “guilty” as an adult that the same standard of proof should apply in both contexts. And although, prior to 1970, the Court had not formally declared “proof beyond a reasonable doubt” to be a constitutional requirement in criminal cases, it used Winship to make that declaration.
2. The Winship majority refers at times to “proof beyond a reasonable doubt,” which is a phrase you have probably heard before.  But the Court also describes this legal standard as “the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt” (emphasis added). Is there a difference between proving a fact, on one hand, and persuading or convincing another person that the fact is true? If so, what is that difference?
3. To expand on the question in the last note, consider how the legal concept of “proof” may differ from a mathematical or scientific conception of proof. As Justice Harlan emphasizes in his concurring opinion in Winship, fact-finders do not and cannot “acquire unassailably accurate knowledge of what happened. Instead, all the fact-find can acquire is a belief of what probably happened.” (This observation seems especially true with regard to mental states. A fact-finder cannot discover or know with certainty exactly what a defendant was thinking at the time of the alleged crime.) Thus, in Justice Harlan’s words, a legal standard of proof “represents an attempt to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” A legal standard of proof has to do with the confidence of a human decisionmaker. In a sense, legal proof is a state of mind – the adjudicator’s state of mind. The conviction (in the sense of firmly held belief) of the fact-finder produces the conviction (in the sense of legal designation as guilty) of the defendant. Although the phrase “proof beyond a reasonable doubt” has become the usual description of the standard of proof in criminal cases, especially after Winship, some courts before and even after Winship describe the issue as whether the factfinder is “convinced beyond a reasonable doubt.” Look closely at the Court’s definition of proof here: “Winship presupposes as an essential of … due process … that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979).
4. The Winship Court argues that individuals must have confidence that the government will not be able to convict anyone “without convincing a proper factfinder of … guilt with utmost certainty.”  Many defendants have cited this language to argue that juries should be instructed that they should not vote to convict unless they have “utmost certainty” of the defendant’s guilt.  Courts routinely refuse this request, however.  Several years after Winship, the Supreme Court described the requisite degree of certainty as “near certitude” rather than “utmost certainty.” Jackson v. Virginia, 443 U.S. 307, 315 (1979). More generally, the Court has treated “beyond a reasonable doubt” as a constitutional requirement without a fixed meaning. The Court has refused to require states to adhere to any specific definition of “beyond a reasonable doubt,” and it has allowed states to refuse to define the term or to allow conflicting definitions. See Miller W. Shealy, Jr., A Reasonable Doubt About “Reasonable Doubt,” 65 Okla. L. Rev. 225 (2013). As Shealy reports, “[o]ne very frustrated trial judge, instructing the jury on ‘reasonable doubt,’ deftly summarized the current state of the law when he said, ‘[W]ho are we to tell you what is reasonable and what is not? That is wholly within your province.’” Id. at 228.
5. The family court judge who presided over Samuel Winship’s trial explicitly stated that he was “convinced” by a “preponderance of the evidence,” but he didn’t think the evidence satisfied a “beyond a reasonable doubt” standard. How would you describe the difference between “preponderance of the evidence” as a legal standard and “beyond a reasonable doubt”?  Can you imagine why someone might argue, as did the lower appellate court in this case, that there is only a “tenuous difference” between the two standards? “Preponderance of the evidence” is often described as a “more likely than not” standard, but courts are usually reluctant to quantify “beyond a reasonable doubt” as a percentage or probability. One Rhode Island judge used a scale—apparently, an old-fashioned balance scale of the type frequently depicted as “the scales of justice”—to explain reasonable doubt to a jury:
   I just happen to have a scale here. Are they about equal? In a civil case the moving party or petitioner must prove the case by a fair preponderance of the evidence. Remember I told you that the scale just has to tilt ever so slightly for the plaintiff to prevail? But this is a criminal case where the burden is greater[;] beyond a reasonable doubt. The scale must go down significantly more, but not all the way. It’s not beyond all doubt, or you would have the scale touch the bench. That’s not the standard. It’s not beyond all doubt. It’s beyond a reasonable doubt.

   The defendant appealed his conviction, arguing that the jury instruction was erroneous. The Rhode Island Supreme Court found no reversible error, but expressed reservations about the trial judge’s explanation:

   Although we agree that the “beyond a reasonable doubt” standard cannot be reduced to a single percentage figure to represent the likelihood that a defendant is guilty, it is still true, as the trial justice instructed the jury, that if the level of certainty needed to convict were subject to quantification the figure would be appreciably greater than 50 percent but still less than 100 percent. Here, the trial justice merely defined the range, by stating that “[t]he scale must go down significantly more [than 50 percent], but not all the way.”

   Yet, although we conclude that the trial justice did not commit reversible error in giving this instruction, use of a scale metaphor, even if it is invoked merely to define a range, may misleadingly tend to quantify the reasonable-doubt standard by suggesting that, within a certain range, a single percentage figure exists beyond which the jury would have to conclude that they were convinced of a defendant’s guilt beyond a reasonable doubt. Therefore, we hold that although the trial justice did not commit reversible error by adverting to the scale metaphor in defining reasonable doubt to the jury, his “characterization of the standard as quantitative rather than qualitative might better have been omitted.”

   State v. O’Brien, 774 A.2d 89, 110 (R.I. 2001).

6. Be sure to understand the difference between two separate issues: the standard of proof, on one hand, and allocation of the burden of proof, on the other. “Beyond a reasonable doubt,” “preponderance of the evidence,” and “clear and convincing evidence” are typical formulations of standards of proof. Again, these phrases describe the degree of confidence that the fact-finder should hold. Beyond a reasonable doubt requires the highest degree of confidence, while preponderance of the evidence requires only that the factfinder think the fact in question is more likely than not to be true. Clear and convincing evidence is an intermediate standard between beyond a reasonable doubt and preponderance. (All of these standards of proof are understood to require much greater levels of confidence than the suspicion standards discussed in Chapter Three, “reasonable suspicion” and “probable cause.”)The allocation of the burden of proof refers not to the factfinder’s degree of confidence, but to which party is obligated to convince the factfinder. In criminal cases, the prosecution carries the burden of proof with regard to each element of the charged offense, which means that it is up to the prosecution to present evidence that persuades the factfinder of guilt (unless, of course, the defendant pleads guilty and relieves the prosecution of this burden). But there are specific kinds of claims raised by defendants called affirmative defenses, and for these claims a state can require the defendant to carry the burden of proof. We will discuss affirmative defenses and defendants’ burdens of proof in relation to Patterson v. New York in Chapter Six, and again as they arise in later cases.
7. In addition to the two issues just discussed (standard of proof, and allocation of burden), adjudication raises a third issue: who will serve as the fact-finder, or the person who must be convinced that the necessary facts have been established? In Winship itself, a family court judge had served as the factfinder, not a jury. Shortly after Winship, the Supreme Court considered whether juvenile defendants have the same constitutional right to a jury trial that the Sixth Amendment grants to adult criminal defendants, and ultimately decided that the right to a jury did not apply in juvenile proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 545-548 (1971). For adult defendants in criminal proceedings, however, the Court has recognized a right to have a jury serve as fact-finder if the potential penalty is six months imprisonment or longer. See Blanton v. City of North Las Vegas, 489 U.S. 538 (1989); Duncan v. Louisiana, 391 U.S. 145 (1967). As previously emphasized, however, and as discussed further in the next section of this chapter, most criminal defendants waive this right to a jury.
8. It is often said that a standard of proof allocates the risk of error. How does the Winship Court use this claim in support of its conclusion that the reasonable doubt standard is a constitutional requirement in criminal cases (and thus also in a juvenile delinquency proceeding)?
9. In his concurrence, Justice Harlan quoted a famous evidence scholar, John Henry Wigmore, who had examined courts’ attempts to describe the reasonable doubt standard and concluded, “The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly … a sound method of self-analysis for one’s [own] belief.” 9 J. Wigmore, Evidence 325 (3d ed. 1940), quoted in Winship, 397 U.S. 358, 369 (Harlan, J., concurring). Harlan seemed to share some of Wigmore’s skepticism, noting that standards of proof were “not a very sure guide to decisionmaking,” but he ultimately agreed with the Winship majority that it was important to adopt “beyond a reasonable doubt” in criminal cases. As Harlan explained, “the choice of the standard of proof for a particular variety of adjudication does, I think, reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” Id. at 370.
10. The previous two notes recount a frequently repeated rationale for a beyond-a-reasonable-doubt standard in criminal cases: the standard allocates the risks of error in a way that favors the defendant, and this allocation reflects a societal assessment that the costs to an individual of a wrongful conviction are so high that we want the government to bear the greater risk of error. This idea is often expressed with the claim that it is better that ten guilty men go free than one innocent man be convicted. As a historical matter, though, “beyond a reasonable doubt” may have entered the law for very different reasons. Legal historian James Whitman has argued that the standard first as a response to a reluctance to convict among medieval Christians, who feared that to convict a fellow human would expose themselves to eternal damnation. The beyond a reasonable doubt standard emerged to provide “moral comfort” to jurors by reassuring them that God would not condemn them for convicting a defendant when the evidence was sufficiently persuasive. James Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008).

Evidence Sufficiency and Elements of Offenses

Winship requires proof beyond a reasonable doubt, but proof of what, exactly? In the Supreme Court’s words, “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Winship, 397 U.S. at 364. Elsewhere, the Court said that the reasonable doubt standard was “the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.” Id. at 361. Thus, under Winship, it is important to identify the separate “elements” of a criminal offense, or the specific facts that must be established to support a conviction. Owens v. State, below, will help you think about how to identify all the elements of an offense and how to determine whether the evidence is sufficient to prove those elements.

Md. Transportation Art. § 21-902. Driving while intoxicated, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance.

(a) Driving while intoxicated.—A person may not drive or attempt to drive any vehicle while intoxicated.

Md. Transportation Art. § 21-101.1

(a) In general.—The provisions of this title relating to the driving of vehicles refer only to the driving of vehicles on highways, except …​

(b) Applicability to private property.—(1) A person may not drive a motor vehicle in violation of any provision of this title on any private property that is used by the public in general.

Christopher C. OWENS, Jr. 

v. 

STATE of Maryland

Court of Special Appeals of Maryland
93 Md. App. 162

Sept. 3, 1992

MOYLAN, Judge.

This appeal presents us with a small gem of a problem from the borderland of legal sufficiency. It is one of those few occasions when some frequently invoked but rarely appropriate language is actually pertinent. Ironically, in this case it was not invoked. The language is, “[A] conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.” West v. State, 539 A.2d 231 (1988) (emphasis in original). 

We have here a conviction based upon circumstantial evidence alone. The circumstance is that a suspect was found behind the wheel of an automobile parked on a private driveway at night with the lights on and with the motor running. Although there are many far-fetched and speculative hypotheses that might be conjured up (but which require no affirmative elimination), there are only two unstrained and likely inferences that could reasonably arise. One is that the vehicle and its driver had arrived at the driveway from somewhere else. The other is that the driver had gotten into and started up the vehicle and was about to depart for somewhere else. 

The first hypothesis, combined with the added factor that the likely driver was intoxicated, is consistent with guilt. The second hypothesis, because the law intervened before the forbidden deed could be done, is consistent with innocence. With either inference equally likely, a fact finder could not fairly draw the guilty inference and reject the innocent with the requisite certainty beyond a reasonable doubt. We are called upon, therefore, to examine the circumstantial predicate more closely and to ascertain whether there were any attendant and ancillary circumstances to render less likely, and therefore less reasonable, the hypothesis of innocence. Thereon hangs the decision. 

The appellant, Christopher Columbus Owens, Jr., was convicted in the Circuit Court … by Judge D. William Simpson, sitting without a jury, of driving while intoxicated. Upon this appeal, he raises the single contention that Judge Simpson was clearly erroneous in finding him guilty because the evidence was not legally sufficient to support such finding. 

The evidence, to be sure, was meager. The State’s only witness was Trooper Samuel Cottman, who testified that at approximately 11 P.M. on March 17, 1991, he drove to the area of Sackertown Road … in response to a complaint that had been called in about a suspicious vehicle. He spotted a truck matching the description of the “suspicious vehicle.” It was parked in the driveway of a private residence. 

The truck’s engine was running and its lights were on. The appellant was asleep in the driver’s seat, with an open can of Budweiser clasped between his legs. Two more empty beer cans were inside the vehicle. As Trooper Cottman awakened him, the appellant appeared confused and did not know where he was. He stumbled out of the vehicle. There was a strong odor of alcohol on his breath. His face was flushed and his eyes were red. When asked to recite the alphabet, the appellant “mumbled through the letters, didn’t state any of the letters clearly and failed to say them in the correct order.” His speech generally was “slurred and very unclear.” When taken into custody, the appellant was “very argumentative … and uncooperative.” A check with the Motor Vehicles Administration revealed … that the appellant had an alcohol restriction on his license. The appellant declined to submit to a blood test for alcohol. 

After the brief direct examination of Trooper Cottman … defense counsel asked only two questions, establishing that the driveway was private property and that the vehicle was sitting on that private driveway. The appellant did not take the stand and no defense witnesses were called. The appellant’s argument as to legal insufficiency is clever. He chooses to fight not over the fact of drunkenness but over the place of drunkenness. He points out that his conviction was under the Transportation Article, which is limited in its coverage to the driving of vehicles on “highways” and does not extend to driving on a “private road or driveway.”

We agree with the appellant that he could not properly have been convicted for driving, no matter how intoxicated, back and forth along the short span of a private driveway. The theory of the State’s case, however, rests upon the almost Newtonian principle that present stasis on the driveway implies earlier motion on the highway. The appellant was not convicted of drunken driving on the private driveway, but of drunken driving on the public highway before coming to rest on the private driveway. 

It is a classic case of circumstantial evidence. From his presence behind the wheel of a vehicle on a private driveway with the lights on and the motor running, it can reasonably be inferred that such individual either 1) had just arrived by way of the public highway or 2) was just about to set forth upon the public highway. The binary nature of the probabilities—that a vehicular odyssey had just concluded or was just about to begin—is strengthened by the lack of evidence of any third reasonable explanation, such as the presence beside him of an inamorata or of a baseball game blaring forth on the car radio. Either he was coming or he was going. 

The first inference would render the appellant guilty; the second would not. Mere presence behind the wheel with the lights on and the motor running could give rise to either inference, the guilty one and the innocent one. For the State to prevail, there has to be some other factor to enhance the likelihood of the first inference and to diminish the likelihood of the second. We must look for a tiebreaker. 

The State had several opportunities to break the game wide open but failed to capitalize on either of them. As Trooper Cottman woke the appellant, he asked him what he was doing there. The appellant responded that he had just driven the occupant of the residence home. Without explanation, the appellant’s objection to the answer was sustained. For purposes of the present analysis, therefore, it is not in the case. We must look for a tiebreaker elsewhere. 

In trying to resolve whether the appellant 1) had just been driving or 2) was just about to drive, it would have been helpful to know whether the driveway in which he was found was that of his own residence or that of some other residence. If he were parked in someone else’s driveway with the motor still running, it would be more likely that he had just driven there a short time before. If parked in his own driveway at home, on the other hand, the relative strength of the inbound inference over the outbound inference would diminish. 

The driveway where the arrest took place was on Sackertown Road. The charging document (which, of course, is not evidence) listed the appellant’s address as 112 Cove Second Street. When the appellant was arrested, presumably his driver’s license was taken from him. Since one of the charges against the appellant was that of driving in violation of an alcohol restriction on his license, it would have been routine procedure to have offered the license, showing the restriction, into evidence. In terms of our present legal sufficiency exercise, the license would fortuitously have shown the appellant’s residence as well. Because of the summary nature of the trial, however, the license was never offered in evidence. For purposes of the present analysis, therefore, the appellant’s home address is not in the case. We must continue to look for a tiebreaker elsewhere. 

Three beer cans were in evidence. The presence of a partially consumed can of beer between the appellant’s legs and two other empty cans in the back seat would give rise to a reasonable inference that the appellant’s drinking spree was on the downslope rather than at an early stage. At least a partial venue of the spree, moreover, would reasonably appear to have been the automobile. One does not typically drink in the house and then carry the empties out to the car. Some significant drinking, it may be inferred, had taken place while the appellant was in the car. The appellant’s state of unconsciousness, moreover, enforces that inference. One passes out on the steering wheel after one has been drinking for some time, not as one only begins to drink. It is not a reasonable hypothesis that one would leave the house, get in the car, turn on the lights, turn on the motor, and then, before putting the car in gear and driving off, consume enough alcohol to pass out on the steering wheel. Whatever had been going on (driving and drinking) would seem more likely to have been at a terminal stage than at an incipient one. 

Yet another factor would have sufficed, we conclude, to break the tie between whether the appellant had not yet left home or was already abroad upon the town. Without anything further as to its contents being revealed, it was nonetheless in evidence that the thing that had brought Trooper Cottman to the scene was a complaint about a suspicious vehicle. The inference is reasonable that the vehicle had been observed driving in some sort of erratic fashion. Had the appellant simply been sitting, with his motor idling, on the driveway of his own residence, it is not likely that someone from the immediate vicinity would have found suspicious the presence of a familiar neighbor in a familiar car sitting in his own driveway. The call to the police, even without more being shown, inferentially augurs more than that. It does not prove guilt in and of itself. It simply makes one of two alternative inferences less reasonable and its alternative inference thereby more reasonable. 

The totality of the circumstances are, in the last analysis, inconsistent with a reasonable hypothesis of innocence. They do not, of course, foreclose the hypothesis but such has never been required. They do make the hypothesis more strained and less likely. By an inverse proportion, the diminishing force of one inference enhances the force of its alternative. It makes the drawing of the inference of guilt more than a mere flip of a coin between guilt and innocence. It makes it rational and therefore within the proper purview of the factfinder. We affirm.

Notes and questions on Owens

1. The Maryland drunk driving statute, § 21-902, is reprinted just before the court’s opinion and seems short and simple. It requires that the defendant a) drive or attempt to drive, b) any vehicle, c) while intoxicated. But the defense argued that because the statute was part of the Transportation Article, which applied to “highways,” there was an additional element of the offense: the prosecution had to show that the driving (or the attempt to drive) took place on a public roadway rather than private property. The Owens court apparently accepted this interpretation of the statute (but the state supreme court later disagreed, as explained in the last note below). One lesson to take from Owens is the fact that criminalization decisions—the precise definition of an offense—are designed to structure adjudication decisions. The factfinder is not supposed to make his own determination of whether a man attempting to drive on a private driveway is guilty of a crime; rather, the factfinder is supposed to take the specific elements of the offense as defined by the legislature, and then determine whether the evidence establishes those pre-defined elements.
2. The Owens court doesn’t give a crisp definition of “circumstantial evidence,” but can you figure out what the term means?  Here is one explanation from a pattern jury instruction:
   You may have heard the phrases “direct evidence” and “circumstantial evidence.” Direct evidence is proof that does not require an inference, such as the testimony of someone who claims to have personal knowledge of a fact. Circumstantial Evidence is proof of a fact, or a series of facts, that tends to show that some other fact is true. As an example, direct evidence that it is raining is testimony from a … witness who says, “I was outside a minute ago and I saw it raining.” Circumstantial evidence that it is raining is the observation of someone entering a room carrying a wet umbrella. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should decide how much weight to give to any evidence. In reaching your verdict, you should consider all the evidence in the case, including the circumstantial evidence.

   Stephen E. Arthur & Robert S. Hunter, Federal Trial Handbook: Criminal, 41:3 (2020). Although this federal instruction says direct and circumstantial evidence should be given the same weight, some states do treat direct and circumstantial evidence differently, as discussed below.

3. Would you have voted to convict Christopher Columbus Owens?  Why or why not?  Which facts or details seem most important to you?  Notice that some facts (such as the defendant’s statement that he had just given someone a ride home) are known to the court, but are not officially “in evidence.”  Which facts that are “in evidence” seem most important to your vote to acquit or convict?

4. Why does the Owens court mention facts not in evidence – that is, facts supposedly not relevant to its decision? Keep in mind that judges are human decisionmakers, and judicial opinions are carefully crafted documents. Are the facts not officially in evidence—such as the fact that Owens was not at his own residence, or that Owens stated that he had just driven a friend home—included to influence the reader of the opinion, even as the court claims that these facts must not influence its own decision?
5. The appellate court says that it is looking for a “tiebreaker” to choose between two possible inferences, one of innocence and one of guilt. It ultimately finds “the totality of the circumstances” to be “inconsistent with a reasonable hypothesis of innocence” even if they do not “foreclose” a hypothesis of innocence. The inference of guilt, the court says, is “more than a mere flip of a coin.” Are the concepts of a “tiebreaker” or a coin flip consistent with proof beyond a reasonable doubt?  Is this court applying a reasonable doubt standard?
6. In relation to the question raised in the previous note, it is important to see that the appellate court is not in the same position as a jury or a trial judge serving as fact-finder, and it is not applying exactly the same legal standard. When an appellate court reviews a conviction for sufficiency of the evidence, the appellate judges are not asking themselves whether they are convinced beyond a reasonable doubt. Rather, the usual standard for a sufficiency of the evidence claim is whether there is enough evidence of guilt so that a reasonable factfinder could have been convinced. Put differently, an appellate court will not typically reverse a conviction for insufficiency of evidence unless the court concludes that the evidence is so weak that no reasonable factfinder could have been convinced beyond a reasonable doubt. (Of course, the issue raised by Wigmore and referenced in Winship still remains: how do human decisionmakers measure the intensity of their own beliefs? And we could now add with regard to appellate review, how do appellate judges evaluate the reasonableness of the intensity of a hypothetical juror’s beliefs?)
7. The Owens court states, in the last paragraph of the opinion, that the evidence need not “foreclose the hypothesis” of innocence in order to be sufficient. Some states adopt a more rigorous standard for convictions based on circumstantial evidence. For example, Georgia law provides that if an element of a crime is established only by circumstantial evidence, “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of guilt of the accused.” Ga. Code. Ann. § 24-4-6. In other words, in contrast to the federal instruction quoted in the first note above, Georgia purports to treat circumstantial evidence differently than direct evidence.
8. A few years after the Court of Special Appeals (an intermediate appellate court) decided Owens, the Maryland Court of Appeals (the state’s highest court) considered a similar case, Rettig v. State, 639 A.2d 670 (Ct. App. Md. 1994). The defendant in that case, Craig Rettig, was represented by the state public defender, the same office that had represented Owens. And Rettig’s attorney raised a similar argument against a drunk driving conviction. Rettig was arrested after he got in an accident while driving an all-terrain vehicle on his own property in the early morning hours; by his own admission, Rettig was “toasted” at the time of the accident. Though Rettig argued (through his attorney) that he could not be convicted because the state drunk driving law applied only to public roadways, the state supreme court rejected this argument, overruling this aspect of Owens. The state supreme court noted that still another provision of the Transportation Article, one not mentioned in Owens, stated “The provisions of this subtitle apply throughout this State, whether on or off a highway.” After Rettig, Maryland prosecutors do not need to show that drunk driving occurred on a public roadway in order to secure a conviction. Owens and Rettig can thus remind us that statutes are subject to different interpretations—especially if different parts of a statute contain seeming contradictory language! Within a given jurisdiction, an interpretation by a higher court displaces a contrary interpretation by a lower court. We look again at statutory interpretation by appellate courts at the end of this chapter with Yates v. United States.

A System of Pleas

The two cases you’ve read so far in this chapter both involved trials, albeit bench trials to a judge serving as fact-finder rather than jury trials. But most criminal defendants do not go to trial, either jury trial or bench trial. Instead, most criminal cases are resolved without a trial. If the case ends in a conviction, that conviction is almost always the result of a guilty plea rather than a trial. Given that a defendant has a constitutional right to a jury trial, and a due process right to demand that the prosecution prove each element of the offense beyond a reasonable doubt, why do so many defendants plead guilty? To begin to understand the dynamics of criminal prosecutions and the prevalence of pleas, consider the next case. The applicable statutes are reprinted before the opinion, but please note that neither statute is still in force today.

Ky Rev. Stat. § 434.130.

Any person who forges or counterfeits any writing in order to obtain fraudulently the possession of or to deprive another of any money or property, or to cause another to be injured in his estate or lawful rights, or any person who utters and publishes such an instrument as true, knowing it to be forged and counterfeited, shall be confined in the penitentiary for not less than two nor more than ten years.

Ky. Rev. Stat. § 431.190. Conviction of felony; punishment on second and third offenses.

Any person convicted a second time of felony shall be confined in the penitentiary not less than double the time of the sentence under the first conviction; if convicted a third time of felony, he shall be confined in the penitentiary during his life….

Don BORDENKIRCHER,
Superintendent, Kentucky State Penitentiary, Petitioner

v.

Paul Lewis HAYES

Supreme Court of the United States
434 U.S. 357

Decided Jan. 18, 1978

Justice STEWART delivered the opinion of the Court.

The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.

I

The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky. Rev. Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the [prosecutor] met … to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and “save[d] the court the inconvenience and necessity of a trial,” he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes’ refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.

A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary…

II

It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant’s insistence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.

The Court of Appeals nonetheless drew a distinction between “concessions relating to prosecution under an existing indictment,” and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness. Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea. The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.

III

We have recently had occasion to observe: “[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” Blackledge v. Allison (1977). The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, the need for a public record indicating that a plea was knowingly and voluntarily made, and the requirement that a prosecutor’s plea-bargaining promise must be kept. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.

IV

This Court held in North Carolina v. Pearce (1969) that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a “realistic likelihood of vindictiveness.” Blackledge v. Perry (1974).

In those cases the Court was dealing with the State’s unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation “very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.” …[I]n the “give-and-take” of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.

Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.

While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable”—and permissible—“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” To hold that the prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.

There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.

Accordingly, the judgment of the Court of Appeals is

Reversed.

Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

…It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court’s holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.

[Blackmun added in a footnote:] That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today’s decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor’s exercise of discretion in initial charging decisions.

Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without any knowledge of the particular defendant’s willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.

Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.

Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was given another chance to plead guilty to the forged check charge in exchange for a five-year sentence.

Mr. Justice POWELL, dissenting.

Although I agree with much of the Court’s opinion, I am not satisfied that the result in this case is just or that the conduct of the plea bargaining met the requirements of due process.

… It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the exercise of a prosecutor’s discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed. But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single $88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute. I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.

There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor’s motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset.

But this is not such a case. Here, any inquiry into the prosecutor’s purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent’s insistence on exercising his constitutional rights….

The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor’s actions denied respondent due process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.

Notes and questions on Bordenkircher v. Hayes

1. A guilty plea is a waiver of the defendant’s right to a trial.  It relieves the prosecution of the burden of convincing a factfinder that the defendant is guilty.  About 97% of criminal convictions in the federal system, and about 94% of state convictions, are the product of guilty pleas. These numbers have led the Supreme Court to observe, “[C]riminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156 (2012). In the federal system, guilty pleas are not only a large portion of convictions, but also a large portion of all cases: in 2018, about 90% of all federal defendants pled guilty.  See John Gramlich, Only 2% of Federal Defendants Go To Trial, and Most Who Do Are Found Guilty (Pew Research Center, June 11, 2019).  Because it involved a guilty plea, Hayes is far more representative of criminal cases than the many appellate opinions in this book that follow a bench or jury trial.
2. A guilty plea is also a waiver of the defendant’s constitutional right against self-incrimination and the right to confront witnesses. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself,” and a guilty plea is a literal and direct act of self-incrimination. The general legal requirement for waivers of constitutional rights is that the waiver must be voluntary, knowing, and intelligent. But the courts’ interpretations of “voluntary,” “knowing,” and “intelligent” vary depending on the context.  The Supreme Court has made clear that the threat of a more severe sentence if one goes to trial does not render a plea involuntary. See Brady v. United States, 397 U.S. 742 (1970). In that case, Robert Brady was charged with the federal offense of kidnaping in 1959. At that time, the federal statute authorized the death penalty as a possible punishment for kidnaping, but only “if the verdict of the jury shall so recommend.” (See 18 U.S.C. § 1201(a), reprinted in footnote 1 of the opinion.)  This meant that a defendant could avoid the risk of a death sentence by pleading guilty. Robert Brady later argued that the possibility of a death sentence if he went to trial created so much pressure to plead guilty that his plea was involuntary, but the Court rejected his claim.
3. Are guilty pleas subject to specific criteria or conditions in order to be valid resolutions of a criminal case? Although “knowing” and “voluntary” are often listed as separate requirements, many courts treat a knowing plea—that is, one made after the defendant is duly informed of the charges against him and other key details of the case—as necessarily voluntary. See, e.g., Wilson v. State, 577 So.2d 394, 396-97 (Miss. 1991) (“A plea is voluntary if the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.”). The conception of voluntariness as a necessary implication of knowledge often leads to what might be called a procedural approach to the validity of pleas, in the sense that pleas are treated as valid when certain procedures are followed. One typical requirement is a “plea colloquy,” in which the defendant is addressed directly by the judge and asked if he understands certain aspects of the case. Federal Rule of Criminal Procedure 11 sets forth the guidelines for guilty pleas in the federal system, including the necessary components of the plea colloquy:

   (a) Entering a Plea.

   (1) In General. A defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere. …

   (b) Considering and Accepting a Guilty or Nolo Contendere Plea.

   (1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:

   (A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;

   (B) the right to plead not guilty, or having already so pleaded, to persist in that plea;

   (C) the right to a jury trial;

   (D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;

   (E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;

   (F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;

   (G) the nature of each charge to which the defendant is pleading;

   (H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;

   (I) any mandatory minimum penalty;

   [various other sentencing considerations…]

   (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and

   (O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.

   (2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).

   (3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.

   (c) Plea Agreement Procedure.

   (1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:

   (A) not bring, or will move to dismiss, other charges;

   (B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or

   (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

   (2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.

   (3) Judicial Consideration of a Plea Agreement.

   (A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.

   (B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. …

    

   F.R.C.P. 11. Notice that the federal rule requires the court to determine that there is “a factual basis” for the guilty plea. Most states have a similar “factual basis” requirement, at least as a matter of written guidelines for pleas. In practice, there is considerable evidence of “fictional pleas.” Professor Thea Johnson describes a fictional plea as “a plea bargain agreement in which a defendant pleads guilty to a crime he did not commit, with the consent and knowledge of multiple actors in the criminal justice system.” Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855, 857 (2019). Like other guilty pleas, a fictional plea may be a way for a defendant to obtain a more favorable outcome than would otherwise be available.

4. Note 2 above described the Supreme Court’s approach to voluntariness in Brady v. United States (1970); the Brady Court rejected the defendant’s argument that the fact that he could be sentenced to death if he went to trial, but not if he pled guilty, rendered his guilty plea involuntary. In Brady, the different penalties were determined by the applicable federal kidnapping statute. Hayes, decided several years after Brady, involved a slightly different situation in which the prosecutor could alter the potential sentence by choosing to charge under one statute rather than another. When a defendant who exercises the right to trial faces a more severe sentence than one who pleads guilty, commentators often characterize the situation as a “trial penalty,” or a “plea discount.” Whether penalty or discount is the better characterization depends in part on one’s view of the appropriate baseline. Do we assume each defendant will be sentenced to the harshest available penalty, in which case anything less is a discount? Or do we assume that most defendants will be sentenced to something less than maximum, in which case more severe sentences for those who go to trial does seem to punish the choice to go to trial? Whatever the best name for the practice, the Hayes Court found the imposition of a more severe sentence on a defendant who refused to plead guilty to be acceptable, in part because the Court characterized plea bargaining as a “give-and-take negotiation” in which “the prosecution and defense … possess relatively equal bargaining power.” In sharp contrast to the Supreme Court’s view of plea bargaining as a negotiation between equals, critics have characterized plea bargaining as coercive for decades. One memorable article compares plea bargaining to the medieval European use of judicially supervised torture to induce confessions. “There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive.” John Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12-13 (1978).
5. Consider Hayes in relation to the aspects of prosecutorial discretion that you studied in Chapter Three. When more than one statute is potentially applicable to a defendant’s conduct, and when different statutes carry different penalties, what rules, if any, apply to the prosecutor’s charging decision?
6. Ultimately, if there is a plausible chance that a prosecutor could prevail at a trial—at least, if the defendant believes there is a plausible chance the prosecutor could prevail—then there exists a very strong incentive for the defendant to plead guilty. This incentive is especially powerful if the prosecutor can both raise the prospect of charging a more severe offense and offer an opportunity to secure a lesser penalty by pleading to a lesser offense. The charging decisions of a prosecutor (themselves made possible by earlier criminalization decisions by a legislature) can create sufficiently strong pressures to plead guilty that the adjudication decision becomes fairly insignificant in relation to the earlier criminalization and enforcement decisions. Here is one federal judge’s description of the usual dynamics of plea negotiations:

   In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case … bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within … limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.

   The prosecutor, by contrast, will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-­up investigations. While much of this may be one-­sided and inaccurate … it not only gives the prosecutor a huge advantage over the defense counsel but also makes the prosecutor confident, maybe overconfident, of the strength of his case.

   Against this background, the information-­deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove. Indeed, until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved—unless, of course, the defendant was willing to enter into a plea bargain. If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge—but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources). Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

   In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little. Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion…. But what really puts the prosecutor in the driver’s seat is the fact that he—because of mandatory minimums, sentencing guidelines … and simply his ability to shape whatever charges are brought—can effectively dictate the sentence by how he publicly describes the offense. For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten­-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

   The defense lawyer understands this fully, and so she recognizes that the best outcome for her client is likely to be an early plea bargain, while the prosecutor is still willing to accept a plea to a relatively low-­level offense. Indeed, in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and four months, while the average sentence for defendants who went to trial was sixteen years.

   Jed Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014).

7. The first paragraph of the Rakoff excerpt above mentions bail and pretrial detention, noting that pretrial detention often makes it difficult for defense attorneys to gather necessary information about their clients. Bail practices are related to guilty pleas in other ways: a number of empirical studies have found that defendants who are detained pretrial are both more likely to be convicted (including convictions at trial) and more likely to plead guilty. It appears to be the detention itself, and not other factors such as prior offenses or severity of the charges, that increases the likelihood of a guilty plea. See, e.g., Samuel Wiseman, Bail and Mass Incarceration, 53 Ga. L. Rev. 235, 250252 (2018) (citing and summarizing research). Critics have pointed out that money bail systems disproportionately impact poor people of color, who often must choose between an extended jail stay as they wait for trial or a quick guilty plea and the ensuing consequences of conviction. See, e.g., Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017).
8. Paul Lewis Hayes, the defendant in the case above, was sentenced to life imprisonment for forging a check in the amount of $88.30. The life sentence was mandated by Kentucky’s Habitual Criminal Act, a statute akin to the “Three Strikes” laws you may have heard discussed today. These laws provide for severe sentences when a defendant is convicted of a third (or greater) offense. The Kentucky law made a life sentence “mandatory” upon a third felony conviction, but it is important to identify the discretion – the enforcement choices – that led to Hayes’s life sentence. The prosecutor could choose whether to seek an indictment under the Habitual Criminal Act, and he initially did not do so. The “mandatory” life sentence was thus a product of the prosecutor’s choice, after Hayes refused to plead, to apply the Habitual Criminal Act.
9. At least one of Hayes’s prior convictions was itself the product of a guilty plea obtained when Hayes was 17 years old; in that case Hayes had denied participating in the crime but agreed to plead guilty anyway. For more background on Bordenkircher v. Hayes and a discussion of the case’s contribution to mass incarceration, see William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories (Carol Steiker ed., 2006). Stuntz gives some background on the racial dynamics of the case – Hayes was a Black man with prior convictions, and Kentucky in 1973 was “not a racially enlightened place.” Id. at 355. At the federal appeals court, Judge Wade McCree Jr., the first Black judge on the Sixth Circuit Court of Appeals, agreed with Hayes that the prosecutor’s choice to pursue a life sentence was “vindictive” and unconstitutional. Of course, the Supreme Court later reversed Judge McCree. More broadly, Stuntz argues that Bordenkircher v. Hayes helped contribute to mass incarceration:
   Even if Hayes’s lawyers had made precisely the right arguments at precisely the right times, and even if the Court had heeded those arguments, ours would still be a society where criminal punishment is a massive industry, of a size and severity unknown anywhere else in the democratic world. But the Court’s decision does bear some responsibility for the punitive turn America’s criminal justice system has taken—for its harshness, for the sheer magnitude of our two-million-plus inmate population. Also for the inexorable rise of plea bargaining, now the means by which nearly nineteen of every twenty convicted felons reach that status. … As the prisoners have multiplied, laws have multiplied as well, adding more criminal prohibitions and harsher sentences to criminal codes. As those bodies of law have grown in size, they have shrunk in consequence. In the criminal justice system, the men and women who work in district attorneys’ offices increasingly rule. The law no longer does. Anyone who wants to understand how that happened would do well to start by studying an obscure case from the 1970s in Lexington, Kentucky.